Saturday, December 9, 2017

The Story Now is Attorney David Boies, the New York Times, and the RICO Lawsuit

I find it interesting that the New York Times had a "relationship" with David Boies' law firm Boies Schiller Flexner.

What does it mean the NYT had a relationship with a major law firm and one which covered up Harvey Weinstein's actions?

Betsy Combier
betsy@advocatz.com

David Boies

The New York Times said late Tuesday that it had ended its relationship with David Boies and his firm after new details emerged about Boies’ work for Harvey Weinstein.
By Miriam Rozen | November 07, 2017 | Originally published on The American Lawyer

UPDATE: The New York Times said Tuesday night that it had “terminated its relationship” with Boies Schiller Flexner. The paper’s statement said in part: “We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible, and the Boies firm must have known that its existence would have been material to our decision whether to continue using the firm. Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted.” Our earlier story is below.
In a message to lawyers and employees at his firm on Tuesday, David Boies said that Harvey Weinstein is no longer a client, and that Boies “would never knowingly participate in an effort to intimidate or silence women or anyone else.”

But law school ethics professors said that multiple questions arise for Boies in the wake of a New Yorker report that the Boies Schiller Flexner chairman contracted with former Israeli Mossad agents to stymie efforts by The New York Times to expose Weinstein’s pattern of alleged sexual harassment.
“These are all serious issues. David Boies has a great reputation. I’m not going to say he crossed the line, but there are some serious issues,” said Laurie Levenson, a professor of law at Loyola Law School in Los Angeles.
Top among those issues, according to Levenson: Could Boies’ actions on Weinstein’s behalf have deterred women from coming forward, potentially even skirting the line of suppressing witness testimony?
Levenson said The New Yorker article also raises questions about Boies’ adherence to obligations to clients and former clients about confidentiality, and about potential conflicts of interest if his work for Weinstein undermined the work of the Times, which was also a Boies Schiller client.
Boies did not respond to multiple requests for comment on Tuesday. In his email to staff, Boies said his firm’s engagement letter with the newspaper “made clear that we needed to be able to continue to represent clients adverse to the Times on matters unrelated to the work we were doing for the Times.”
“There is a lot coming at us fast and furious here,” Levenson cautioned. And she noted that a fine line separates lawyers’ efforts to determine what allegations they may face on the one hand, and actual suppression of witness testimony on the other.
Almost immediately after The New Yorker story was posted, The New York Times lashed out at Boies, whose firm represented the newspaper in two pending matters and a third that has been concluded, according to a Times spokeswoman.
“We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies,” the Times said late Monday.
Levenson said the conflicts question is “attenuated,” since Boies was not representing the newspaper on a matter directly related to Weinstein. But, she said, “Clearly he has a client who feels like he was playing both sides.”
In his own statement on Tuesday, Boies described what he told Weinstein when he learned about the Times running a story with allegations about the movie producer’s predatory behavior to women:
“I told Mr. Weinstein at that time that neither I nor the firm would represent him in this matter, and he hired several other lawyers to represent him. I also told Mr. Weinstein that the Times story could not be stopped through threats or influence; the only way that the story could be stopped was by proving it was not true.
Mr. Weinstein, together with the lawyers representing him, selected private investigators to assist him and drafted a contract. He asked me to execute the contract on his behalf. I was told at the time that the purposes of hiring the private investigators were to ascertain exactly what the actress was accusing Mr. Weinstein of having done, and when, and to try to find facts that would prove the charge to be false and thereby stop the story. I did not (nor did the firm) select the investigators (at least one of which had been used by Mr. Weinstein previously) or direct their work; that was done by Mr. Weinstein and his other counsel.”
Such a fulsome account of what Boies told a client and what that client asked raises questions about client confidentiality, Levenson said. “Has he been revealing confidential information, information he learned by helping a client on a case?” she asked.
Ronald Minkoff, a partner in Frankfurt Kurnit Klein & Selz who leads the firm’s professional responsibility group, raised a separate concern about the activities of the investigators Boies hired. He said they appeared to engage in “pretexting,” or contacting people under false pretexts and identities. “It’s pretty clear that is something to avoid,” he said.
He suggested that Boies retained the investigators, rather than Weinstein doing so directly, to keep the information they gained under attorney-client privilege protections. Because Boies signed the contract, Minkoff said, “He was responsible for them.”
“He was either not supervising them and they were off doing things they should not be doing. Or he was supervising them. Either way, he was not steering the ship the way he should have been,” Minkoff said.
Deborah Rhode, who directs the Center on the Legal Profession at Stanford Law School, offered an even harsher assessment.
“What was he thinking? This is a clear violation of ethical rules and ethical norms to run opposition research on a current client,” Rhode said.
Boies’ statement that he did not supervise the investigators “is a mitigating factor,” not necessarily an entirely persuasive one though, she said.
“You have to have known that if you are working with organizations like those, there will be ethical issues,” she said.
If there’s a broader lesson based on what’s known so far, said Loyola’s Levenson, it’s that there are limits to client service.
“The biggest problem is getting sucked in by a client,” she said. “You might put on blinders and take risks you wouldn’t ordinarily take and not look as closely at ethical issues.”

Will Biglaw Firms Get Caught In The Weinstein RICO Lawsuit?

Which firms could be involved?

Harvey Weinstein, David Boies
| December 06, 2017


newly filed racketeering lawsuit claims several law firms, including K&L Gates and Boies Schiller Flexner, were key participants in an alleged scheme to cover up widespread sexual misconduct on the part of disgraced Hollywood producer Harvey Weinstein.
Six women, represented by Hagens Berman Sobol Shapiro, filed a proposed class action in Manhattan federal court on Wednesday, accusing Weinstein, the Weinstein Co., the company’s board members, Miramax Film Corp. and others of violating the Racketeer Influenced and Corrupt Organizations Act. The complaint parallels a similar one filed last month in California, with both complaints alleging that advisers and others in Weinstein’s orbit—referred to as members of a “Weinstein Sexual Enterprise”—helped “facilitate and conceal” a pattern of unwanted sexual conduct perpetrated by the film producer.

Prominent litigator David Boies and his law firm Boies Schiller had already been in the public spotlight over his work for Weinstein following a New Yorker report that the lawyer contracted with an Israeli private intelligence agency, Black Cube, as it was trying to derail a potential New York Times story about Weinstein’s predatory behavior toward women. That scrutiny continued this week when Boies’ actions came up again in a lengthy New York Times article looking at people who helped Weinstein keep his misconduct under wraps.
But the successive RICO suits also suggest that the fallout from the Weinstein scandal is expanding to include other legal advisers.
Although it does not specifically name lawyers or law firms as defendants, Wednesday’s complaint casts the lawyers and law firms surrounding Weinstein—including Boies Schiller, K&L Gates, U.K.-based BCL Burton Copeland, and Israel-based Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.—as central figures in the alleged scheme to cover up his misconduct. The firms are described as “co-conspirators” along with others that included Weinstein’s business associates and private intelligence firms.
“The law firm participants provided cover and shield to the Weinstein participants by contracting with the intelligence participants on behalf of the Weinstein participants and permitting the Weinstein participants to protect evidence of Weinstein’s misconduct under the guise of the attorney-client privilege or the doctrine of attorney work product when that was not the case,” the complaint said. “The law firm participants also approved the intelligence participants’ ‘operational methodologies,’ which were illegal.”
In an emailed statement on Thursday, K&L Gates described the complaint’s allegations about the firm as untrue and denied that it ever worked for Weinstein.
“We are aware of the lawsuits filed against Harvey Weinstein and others that mention K&L Gates. K&L Gates is not named as a defendant in the lawsuits but the suits attempt to claim that the firm was involved in a scheme to facilitate or cover up Mr. Weinstein’s activities. The claims relating to K&L Gates are false. K&L Gates has never represented Mr. Weinstein or any other person or entity concerning investigations or inquiries relating to Mr. Weinstein,” the firm’s statement said.
Representatives for the other law firms did not immediately respond to requests for comment. Previously, Boies Schiller provided a statement to affiliate publication The Recorder indicating that it would refrain from commenting on Weinstein-related matters in connection with a request from the producer’s current defense lawyer, Benjamin Brafman.

Friday, December 8, 2017

Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit is Accused by Six Women of Sexual Misconduct

Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, pictured in 2003. Six women — all former clerks or externs in the 9th Circuit — alleged to The Washington Post in recent weeks that Kozinski, now 67, subjected them to a range of inappropriate sexual conduct or comments. (Paul Sakuma/AP)
Prominent appeals court Judge Alex Kozinski accused of sexual misconduct
 
A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.
Heidi Bond, who clerked for Kozinski from 2006 to 2007, said the porn was not related to any case. One set of images she remembered was of college-age students at a party where “some people were inexplicably naked while everyone else was clothed.” Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman.
Bond is one of six women — all former clerks or externs in the 9th Circuit — who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.
In a statement, Kozinski said: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”
When Bond was clerking, Kozinski was on the precipice of becoming chief judge for the 9th Circuit — the largest federal appeals court circuit in the country, handling cases for a large swath of the western United States as well as Hawaii and Alaska. The other people who alleged that Kozinski behaved inappropriately toward them worked in the 9th Circuit both before and after her, up to 2012.
Bond said she knew that she was to come to the judge’s office when her phone beeped twice. She said she tried to answer the judge’s inquiries as succinctly and matter-of-factly as possible. Bond was then in her early 30s and is now 41.
If the question was about photoshopping, Bond said, she would focus on minor details of the image. If Kozinski asked whether the images aroused her, Bond said, she would respond: “No, this kind of stuff doesn’t do anything for me. Is there anything else you need?” She said she recalled three instances when the judge showed her porn in his office.
“I was in a state of emotional shock, and what I really wanted to do was be as small as possible and make as few movements as possible and to say as little as possible to get out,” Bond said.
Bond, who went on to clerk for the Supreme Court and now works as a romance novelist writing under the name Courtney Milan, and another clerk, Emily Murphy, who worked for a different judge on the 9th Circuit and is now a law professor, described their experiences in on-the-record interviews. The other four women spoke on the condition that their names and some other identifying information not be published, out of fear that they might face retaliation from Kozinski or others.
Kozinski, who served as the chief judge on the 9th Circuit from 2007 to 2014, remains a prominent judge, well known in the legal community for his colorful written opinions. His clerks often win prestigious clerkships at the Supreme Court.
Murphy, who clerked for Judge Richard Paez, said Kozinski approached her when she was talking with a group of other clerks at a reception at a San Francisco hotel in September 2012. The group had been discussing training regimens, and Murphy said she commented that the gym in the 9th Circuit courthouse was nice because other people were seldom there.
Kozinski, according to Murphy and two others present at the time who spoke to The Post, said that if that were the case, she should work out naked. Those in the group tried to change the subject, Murphy and the others present said, but Kozinski kept steering the conversation toward the idea of Murphy exercising without clothes.
“It wasn’t just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well,” Murphy said. “That was what was humiliating about it.”
Murphy, who was 30 at the time of the incident and is now 36, provided The Post with a 2012 email showing that she told a mentor about what had happened at the time. Two of Murphy’s friends who were present at the time of the encounter, speaking on the condition of anonymity, also confirmed her account. Bond, similarly, provided emails showing that she told a friend what had happened at least as of 2008.
The friend, fellow romance novelist Eve Ortega, provided the same emails. She confirmed that Bond had told her years ago that Kozinski made inappropriate sexual comments and showed her porn.
Kozinski has previously been embroiled in controversies relating to sexually explicit material.
In 2008, the Los Angeles Times revealed that Kozinski had maintained an email list that he used to distribute crude jokes, some of them sexually themed, and that he had a publicly accessible website that contained pornographic images.
A judicial investigation ultimately found that Kozinski did not intend to allow the public to see the material, and that instead the judge and his son were careless in protecting a private server from being accessible on the Internet.
Anthony J. Scirica, then the chief judge of the U.S. Court of Appeals for the 3rd Circuit, wrote at the time that Kozinski’s “conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.”
According to Scirica’s report, Kozinski said that he used the server to keep a variety of items he received by email, including TV commercials, video clips, cartoons, games and song parodies.
Of the sexually explicit files, Kozinski testified: “Some I thought were odd or funny or bizarre, but mostly I don’t have a very good reason for holding onto them. I certainly did not send them to anyone else or ask anyone to send me similar files,” according to Scirica’s report.
Kozinski also testified that he “does not visit and has no interest in pornographic websites,” according to Scirica’s report. He separately apologized for any embarrassment he had caused in maintaining the email list and said he had stopped sending the jokes.
Bond said the images Kozinski showed her seemed to come from his private server, because he pulled them from a site containing the term “kozinski.com.”
The other Kozinski clerk who said the judge showed her porn declined to provide specifics out of fear that Kozinski would be able to identify her. Bond said Kozinski also showed her a chart he claimed he and his friends from college had made to list the women with whom they had had sexual relations.
Bond said either Kozinski or his administrative assistant reached out to her around the time of the news reporting on his private server, asking if she would be willing to defend his character. She wrote Ortega about the inquiry in 2008, according to emails the women shared with The Post, and Ortega responded that it “sounds like a very bad idea to me.”
“I know he brought you into his office to show you porn, I know he made sexual innuendos to you. I know this because you told me so in DC, and you even used the words sexual harassment,” Ortega wrote. “You said you would warn off other women thinking of clerking for him. And if there’s a woman out there he harassed worse than you, do you really want to be pitted against her? Because that’s what it would be. I’m worried that this is what he’s asking you to do — to be the female, intelligent face of his defense and make whoever it is accusing him look like a stupid slut, and then he hopefully never has to actually address those allegations.”
Kozinski was born in Romania to Holocaust survivors in 1950, and the family fled the communist state when he was a boy. Decades ago, long before he was a federal judge, he appeared on the television show “The Dating Game,” planting a kiss on a surprised young woman who selected him for a date. He is married and has three sons.
Kozinski was appointed to the 9th Circuit by President Ronald Reagan in 1985. He is an atypical federal appeals court judge — authoring irreverent opinions and not shying, as many of his colleagues do, from media appearances.
He styled one opinion in 2012 not as a traditional concurrence or dissent, but instead as “disagreeing with everyone.” He famously wrote during a trademark dispute between the toy company Mattel and the record company that produced the 1997 song “Barbie Girl,” “The parties are advised to chill.”
In more recent years, Kozinski wrote that using lethal injections to impose the death penalty was “a misguided effort to mask the brutality of executions by making them look serene and beautiful — like something any one of us might experience in our final moments,” and he told the Los Angeles Times, “I personally think we should go to the guillotine, but shooting is probably the right way to go.”
The Post reached out to dozens of Kozinski’s former clerks and externs for this story. Many of those who returned messages said they experienced no harassment of any kind, and their experience — which entailed grueling work into the wee hours of the morning every day — was a rewarding one. They noted Kozinski’s wry sense of humor.
Those who talked to The Post about negative experiences said that they felt his behavior went beyond bad jokes or that they felt personally targeted.
A former Kozinski extern said the judge once made a comment about her hair and looked her body up and down “in a less-than-professional way.” That extern said Kozinski also once talked with her about a female judge stripping.
“I didn’t want to be alone with him,” the former extern said.
A different former extern said she, similarly, had at least two conversations “that had sexual overtones directed at me,” and she told friends about them at the time. One of the friends, also a former extern, confirmed that the woman had told her about the remarks — though both declined to detail them for fear of being identified.
One former 9th Circuit clerk said she was at a dinner in Seattle, seated next to Kozinski, when he “kind of picked the tablecloth up so that he could see the bottom half of me, my legs.” She said Kozinski remarked, “I wanted to see if you were wearing pants because it’s cold out.” The former clerk said that she was wearing pants at the time. The incident, she said, occurred in either late 2011 or early 2012.
“It made me uncomfortable, and it didn’t seem appropriate,” said the former clerk, who worked for a different judge.
All of the women The Post interviewed said they did not file formal complaints at the time. Bond said Kozinski had so vigorously stressed the idea of judicial confidentiality — that what is discussed in chambers cannot be revealed to the outside — that she questioned even years later whether she could share what had happened with a therapist, even though she had already talked with Ortega about what had happened.
Bond said Kozinski worked his clerks so hard that “there was no thought that I could see him as anything other than in complete control,” and she feared that not leaving with a good recommendation from him might jeopardize her career.
“I did think about walking away and concluded I just didn’t know what I would do if I did,” Bond said.
The other former Kozinski clerk who said the judge asked her to watch porn in his chambers said she both feared what the judge might do and knew that a complaint was unlikely to strip him of his influence.
“I was afraid,” the former clerk said. “I mean, who would I tell? Who do you even tell? Who do you go to?”
Murphy said she discussed what had happened with the judge for whom she was clerking, and he was supportive of her filing a complaint. But because the complaint would first go to Kozinski himself, then be referred elsewhere, Murphy said she chose not to proceed. The judge, Paez, declined to comment for this story through a representative.
As a judge, Kozinski has addressed the topic of sexual harassment in important ways. In 1991, he joined an opinion that decided such cases should be judged from the perspective of the victims, using what was then called the “reasonable woman” standard. The opinion, written by then-Judge Robert R. Beezer, noted pointedly, “Conduct that many men consider unobjectionable may offend many women.”
Beezer died in 2012. Kozinski himself wrote about sexual harassment in 1992, commenting on how legal remedies could come with unforeseen consequences.
He wrote that men “must be aware of the boundaries of propriety and lean to stay well within them,” while women “must be vigilant of their rights, but also have some forgiveness for human foibles: misplaced humor, misunderstanding, or just plain stupidity.”
He acknowledged, though, that the problem of harassment was a real one.
“But who knew, who understood, that it was quite so pervasive,” Kozinski wrote. “Apparently most women did, while most men did not. It was the best-kept secret of modern times.”
Julie Tate contributed to this report.

Thursday, December 7, 2017

The US Needs A National Standard For Public Corruption

From Courtbeat-New York Court Corruption Editor Betsy Combier:

I agree with the opinion of Bradley Tusk re-posted below from the Chicago Tribune, that there should be uniform national standards for public corruption.

But please let's make zero tolerance for corruption and for miscreants getting their pensions after conviction, the national standard, and nothing less.

Betsy Combier
betsy@advocatz.com
Editor, Advocatz
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Rod Blagojevich
Commentary: Blagojevich wants Supreme Court guidance on corruption. So do I.
Bradley Tusk, December 7, 2017

I have no particular desire to see former Gov. Rod Blagojevich released early from his 14-year prison sentence. And despite claims about bias by U.S. District Judge James Zagel, as someone who testified in both of Blagojevich’s corruption trials I found Zagel to be consistently fair, objective and reasonable.

Nineteen Illinois politicians signed a letter asking the U.S. Supreme Court to review Blagojevich’s case — and while I don’t see Rod’s fate as an especially valuable use of the court’s time, I do agree that virtually everyone working at high levels of government and politics across the nation could use clearer guidance as to what is legal and what isn’t.
The petitioners argue that the court needs to “distinguish the lawful solicitation and donation of campaign contributions from criminal violations of federal extortion, bribery and fraud laws.”

They have a point. For as long as politicians are allowed to freely solicit money for their political campaigns, there is always going to be an intersection of campaign donations, taxpayer funds and government spending. Giving elected officials, their government staff, their campaign staff and donors abundantly clear rules and guidance can only help reduce corruption, change the social norms around pay-to-play politics (especially in Illinois, where it’s still seen as a cost of doing business), and give the taxpayers far more confidence that the system is corruption-free.

I see this frequently in my work as a venture capitalist. I founded a firm that works with and invests in startups in a variety of regulated industries. My company does business with virtually every state, every major city and the federal government, so I’ve seen how things work pretty much everywhere. Time after time, the entrenched interests our startups are disrupting try to use pay-to-play politics and campaign donations to stifle competition, limit innovation and preserve the status quo.

Pay-to-play politics is a potent threat to innovation, and the lack of clarity about what is allowed and what isn’t only makes things worse.

After leaving Illinois, I moved back to New York City, where Mayor Bill de Blasio spent much of his first term under federal and local investigation for alleged corruption, almost all of it stemming from allegedly providing favors, benefits, grants, jobs and contracts to donors. When it came time for de Blasio’s re-election, viable competitors were stuck on the sidelines, waiting for the outcome from the offices of the U.S. attorney and the Manhattan district attorney.

In February, both prosecutors issued an unprecedented statement saying they believed de Blasio and his team violated the letter and spirit of the law, but they lacked enough evidence to bring charges. That’s fine — the prosecutors were just doing their jobs the best they could.

But the standards that brought Blagojevich to trial in Illinois were very different and much tougher.

That doesn’t make sense. What’s corrupt in Illinois should be corrupt in New York and vice versa. And while the U.S. Supreme Court did address the definition of bribery when it reversed the corruption conviction of former Virginia Gov. Bob McDonnell, I don’t know anyone in government or politics who would say they now clearly know what elected officials can and can’t do when it comes to donors.

If the Supreme Court wants to make the standard much, much stricter and rule that no one who receives government contracts, grants, loans or business of any kind can donate (either as an individual or a business), that would make a lot of sense. If the court wants to prohibit contributions from those types of donors within 12 or 24 months of an election, that would make sense. And if the justices want something else, that could be fine too.

Just make it clear. And make it universal, so staffers in Springfield, Sacramento, Calif., Washington, D.C., Boston, Denver, Atlanta, Detroit, New York and everywhere else can easily know what’s permissible and what isn’t.

Obviously, there’s a lot of nuance and gray in politics. That’s part of what makes it so interesting. But in this case, the nuance only leads to institutionalized corruption and mass confusion. It doesn’t matter if the court addresses this in the case of Blagojevich or someone else, but the need for better nationwide rules and clear guidance is abundant. They should act on it.
Bradley Tusk, the founder and CEO of Tusk Ventures and Tusk Strategies, served as deputy governor during Rod Blagojevich’s first term as governor of Illinois.

Sunday, October 15, 2017

Cy Vance, Manhattan District Attorney, Protects Those Who Pay Him To Overlook Their Wrong-doing

Pay to play in New York City fascinates us all. We love to hear about how the rich and powerful do unethical things and are caught. Movie mogul is the latest to rightfully fall from his pedestal.

The ugly side of this tale of woe is who knew what, and when, and why wasn't something done about this before now?

Cy Vance, the Manhattan District Attorney,  seems to be the bad guy who refused to look into Weinstein and the complaints against him. Vance must go. He should resign. Immediately.

Betsy Combier
betsy@advocatz.com
Editor, Advocatz
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Money and the scales of justice
NY Daily News, "Do you feel like it’s necessary to make large contributions (to politicians) in the cost of doing business?”

“I personally don’t,” replied the developer who’d given a fortune to various New York politicians in the course of doing business here. “I think the perception is in a way worse when I make a large contribution . . . where I was asking for something proper and even good, and a candidate really was under pressure to reject it because I made contributions to his campaign.”

That word-salad — which I stumbled over in the files Donald Trump biographer and indefatigable money-trail follower Wayne Barrett generously shared at the end of his life — came in 1988, as the august members of a special State Commission on Government Integrity came to 725 Fifth Ave., better known as Trump Tower, to question The Donald.

The exchange jumped out at me because of the questioner, listed in the transcript as MR. VANCE. That was the former secretary of state under President Carter, whose namesake son, Cyrus Vance Jr., is running unopposed for a third term as Manhattan district attorney amidst a brutal wave of stories about his decisions not to prosecute powerful people that came too late for anyone else to get on the ballot.

Start with Vance’s 2015 call not to charge Harvey Weinstein with forcible touching and sexual abuse after the NYPD provided an appalling tape, recorded by the victim, of him vowing “I won’t do it again” even as he cajoles her to enter his hotel room while threatening her career.

That old news was revisited, in a harsh new light, after the New Yorker published the recording in its blockbuster story last week in which several women accused the movie mogul of rape.

That came less than a week after the magazine reported that the DA’s Major Economic Crimes Bureau had spent two years building a fraud case, including smoking-gun emails, against Donald Trump Jr. and Ivanka Trump for lying to prospective buyers about sales at the Trump SoHo.

Then in 2012, Donald Trump’s longtime personal attorney, Marc Kasowitz, gave Vance $25,000, only to have the money returned when it quickly became apparent he had business with the DA's office, namely a sitdown with Vance himself to discuss the Trump SoHo case.

Months after that, Vance overruled his own prosecutors and told them to drop the case. Months after that, Kasowitz gave another $31,000, which Vance is now returning, while also revising his donor policies.

“Contributions have never influenced Cy Vance’s work and they never will,” a campaign spokesman said, stressing the “rigorous process” that led them to return the money years after collecting it and days after the New Yorker story.

Which is awfully little, awfully late, even if campaign cash had nothing to do with the DA’s decisions.

After a first term marked by the collapse of the rape charges he’d brought against powerful French politician Dominique Strauss-Kahn, Vance’s office seems to have an aversion to sex-crime cases against famous people with very expensive lawyers.

And the Trumps are legendary for dragging out legal battles, which makes the Trump SoHo case — where the supposed victims themselves told the DA that they’d suffered no real harm, and the reported victimizers seemed far less politically relevant back in 2015 — a sensible one, politically speaking at least, to walk away from.

“If I like somebody or I think they are doing a good job in the city, I have a big stake in the city, and if I think somebody is better than somebody else, I generally support that person,” Trump said back in 1988 about why he gave so much to so many politicians here despite his disgust with city government.

Decades after Cyrus Sr. questioned Donald Sr. about doing business with local politicians, there was Donald Sr.’s attorney doing business with local politician Vance Jr. while he had Donald Jr. and Ivanka on the legal hook.

Kasowitz says he donated to the Manhattan DA because he is “a person of impeccable integrity,” and “a brilliant lawyer,” and that “I have never made a contribution to anyone’s campaign, including Cy Vance’s, as a ‘quid pro quo’ for anything.”

I take Kasowitz and Vance at their words, about there being no quid pro quo.

But what Trump said back then about his gifts pressuring politicians to act against his interests didn’t play out this time.

The final question the Commission on Government Integrity posed to Trump was whether it made a difference “to you in that meeting (with a city official) that you may have given that person $150,000 over the past three years?”

“It doesn’t make any difference to me. Your question is does it make any difference to them, and you’ll have to ask them.”

harrysiegel@gmail.com
Cy Vance

Cy Vance Defends Decision Not to Pursue Case Against Harvey Weinstein

The Manhattan district attorney, Cyrus R. Vance Jr., on Wednesday defended his decision not to pursue sexual abuse charges against the movie producer Harvey Weinstein in 2015.

Mr. Vance said his office did not have enough evidence to prosecute Mr. Weinstein, despite an audio tape an Italian model made for the police on which the producer apologized when the woman asked him why he had touched her breasts.

“Our best lawyers looked at the case,” Mr. Vance said, speaking to reporters after an event at John Jay College of Criminal Justice in Manhattan. “I, like they, was very disturbed by the contents of the tape. It’s obviously sickening. But at the end of the day we operate in a courtroom of law, not the court of public opinion, and our sex crime prosecutors made a determination that this was not going to be a provable case.”

Mr. Vance, who is running unopposed for a third term, has come under withering criticism this week from some quarters for his decision, after revelations in The New York Times and The New Yorker about Mr. Weinstein’s sexual harassment of women he worked with over the last three decades and the payments he made to female accusers to keep their complaints out of the public eye.

One of the women who accused Mr. Weinstein of sexual misconduct was Ambra Battilana, a model from Italy. In March 2015, Mr. Weinstein met Ms. Battilana at a party and invited her to his TriBeCa office on a Friday evening to discuss her career, according to a police report

Within hours, she walked into a police station, telling officers Mr. Weinstein had grabbed her breasts after asking if they were real, then put his hand up her skirt, according to the police report.

Detectives from the special victims unit had her set up a meeting with Mr. Weinstein the following night at the bar of the Tribeca Grand Hotel. She recorded the conversation for the police.

During the meeting, Mr. Weinstein invited Ms. Battilana up to his room to wait while he showered, according to the tape, first published on The New Yorker’s website on Tuesday. She balked at entering the room, however, and said she wanted to leave. In a tense exchange in the hallway, she asked him why he had touched her breasts the day before.

“I’m used to that,” he answered. “You’re used to that?” she asked. “Yes,” he said, adding: “I won’t do it again.”

Detectives thought the tape corroborated Ms. Battilana’s account and would be enough evidence to arrest Mr. Weinstein, police officials said.

But the chief of Mr. Vance’s sex crimes bureau, Martha Bashford, determined after two weeks of investigation that she could not prove a crime had been committed.

Prosecutors said the police did not have enough proof to show beyond a reasonable doubt every element of the two charges they could bring: forcible touching or third-degree sexual abuse. To prove either crime, the state must show the accused person touched someone to degrade them or for sexual gratification, not some other purpose.

Ms. Battilana had told the police she and Mr. Weinstein were discussing the possibility of her becoming a lingerie model when he asked if her breasts were natural or augmented and then touched her, two law enforcement officials familiar with the investigation said.

Mr. Weinstein was represented in talks with the district attorney’s office by two defense lawyers with ties to Mr. Vance: Daniel S. Connolly, a former Manhattan prosecutor, and Elkan Abramowitz, who is Mr. Vance’s former law partner and a donor to his campaign.

Mr. Vance said on Wednesday the donations had not influenced him. He noted contributions from defense lawyers were legal and were “unfortunately part of running for office.”

“No contribution ever in my seven years as district attorney has ever had any influence on my decision-making in a case,” he said.

“Obviously, he has some serious issues, and the tape is terrible,” Mr. Vance said. “But I, as D.A., have to be guided by the evidence and the element of the crime and by experts in the office, and if I stop being guided by any of those things and start being guided by outside influences, whether it’s money or it’s public opinion, then I’m not doing my job.”

Correction: October 11, 2017

An earlier version of this article misstated the circumstances under which Mr. Weinstein made payments to women who accused him of sexual harassment. He did so to keep the accusations out of the public eye, not to settle civil cases. No civil cases accusing Mr. Weinstein of sexual harassment were filed.


NYPD, prosecutors point fingers over Harvey Weinstein investigation

By Eric Levenson, CNN, NEW YORK —

The explosive sexual harassment and sexual assault accusations against movie mogul Harvey Weinstein aren't just roiling Hollywood. They're also shaking up the New York City criminal justice system.

The New York Police Department and the Manhattan District Attorney's office traded public finger-pointing on Tuesday in response to questions about why Weinstein was not charged with a crime after a 2015 sting operation recorded him making potentially incriminating comments to a young woman.

The office of Manhattan District Attorney Cyrus Vance Jr. accused the NYPD of providing "insufficient" evidence to prove a crime, while the police department defended its techniques and investigation.

Weinstein, the studio executive and political power broker, is facing allegations of rape, unwanted touching and assault by a number of women, including accusations of sexual harassment by actresses Gwyneth Paltrow and Angelina Jolie, in recent stories published in The New York Times and The New Yorker.

The sting operation

A story Tuesday in The New Yorker accuses Weinstein of rape by multiple women and includes an audio recording of Weinstein speaking with Ambra Battilana Gutierrez, a young model, as part of a sting operation. The NYPD set up the sting after Gutierrez told authorities that Weinstein groped her the day before.

Gutierrez, wearing a recording device, met up with Weinstein at a hotel in Manhattan. On the tape, Weinstein can be heard repeatedly telling Gutierrez to come inside his hotel room. She repeatedly rebuffs his requests and says she is not comfortable doing so.

At one point, Gutierrez asks him, "Why yesterday (did) you touch my breast?"

"Oh please, I'm sorry, just come on in. I'm used to that," he responds.

"You're used to that?" she says.

"Yes, come in," he says.

"No, but I'm not used to that," she says.

"I won't do it again," he says.

Weinstein's representatives said they have no comment on the tape.

Despite the tape, Weinstein was not arrested or charged with any wrongdoing at the time.

"After analyzing the available evidence, including multiple interviews with both parties, a criminal charge is not supported," the District Attorney's Office said at the time, according to The New Yorker.

NYPD sources told CNN the department has no open investigations into Weinstein's actions and no additional victims have come forward with accusations against him.

The sources also said there are a number of reasons why the case will not be reopened, one being that the statute of limitations for what could have been a misdemeanor offense has expired.

A representative for Weinstein released a statement denying any accusations of rape.

"Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein. Mr. Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances," the statement said.

"Mr. Weinstein obviously can't speak to anonymous allegations, but with respect to any women who have made allegations on the record, Mr. Weinstein believes that all of these relationships were consensual. Mr. Weinstein has begun counseling, has listened to the community and is pursuing a better path. Mr. Weinstein is hoping that, if he makes enough progress, he will be given a second chance."

Why no criminal charges?

So why did Weinstein not face charges?

On Tuesday, after The New Yorker published that audio, the Manhattan District Attorney's office released a statement implying that the NYPD had dropped the ball in its investigation.

The NYPD arranged the sting "without our knowledge or input" and did not give prosecutors "the opportunity before the meeting to counsel investigators" on what was needed to prove a misdemeanor sex crime, according to Chief Assistant District Attorney Karen Friedman Agnifilo.

"While the recording is horrifying to listen to, what emerged from the audio was insufficient to prove a crime under New York law, which requires prosecutors to establish criminal intent," Friedman Agnifilo said in the statement.

"Subsequent investigative steps undertaken in order to establish intent were not successful. This, coupled with other proof issues, meant that there was no choice but to conclude the investigation without criminal charges."

Friedman Agnifilo said Weinstein's reported pattern of mistreating women is "disgraceful and shocks the conscience."

"If we could have prosecuted Harvey Weinstein for the conduct that occurred in 2015, we would have," she said.

NYPD defends its actions

But the NYPD took issue with that characterization of their investigation, saying in a statement that the case was carried out by experienced detectives and supervisors from the department's Special Victims Unit.

"The detectives used well-established investigative techniques. The recorded conversation with the subject corroborates the acts that were the basis for the victim's complaint to the police a day earlier," the NYPD said.

"This follow-up recorded conversation was just one aspect of the case against the subject. This evidence, along with other statements and timeline information, was presented to the office of the Manhattan District Attorney."

In addition, Vance's office has faced criticism for accepting a $10,000 donation from David Boies, an attorney for Weinstein, in August 2015 -- four months after the decision not to press charges, according to campaign financial disclosure forms from the New York State Board of Elections.

However, Vance campaign spokesperson Stephen Sigmund said in a statement that Boies was not Weinstein's lawyer in that criminal case.

"Mr. Boies has been a longtime supporter of Cy Vance, both well before 2015 and well after. His contributions, like those of any other contributor, do not and never will influence the work of the DA s office," the statement said.

The disclosure form also shows that Boies donated $15,000 to Vance's campaign in 2013, $10,000 in 2011 and $20,000 in 2008.

Boies' office did not immediately respond Wednesday to a request for comment.

Vance told reporters Wednesday that his office's decision not to press charges was guided by a recommendation from the head of the Sex Crimes Unit and had nothing to do with any donations.

"No contribution ever in my seven years of (being) District Attorney has ever had any impact on my decision making in a case," Vance said.

In his decades at Miramax and the Weinstein Company, Weinstein produced such Oscar-winning movies as "Pulp Fiction," "Shakespeare in Love" and "The English Patient." He was fired from the film company he co-founded on Sunday.